Trump Cannot Save SCOTUS, the Court is Already Lost

“If you don’t vote for Trump, you are handing the court to Clinton! She will appoint so many liberal judges that we will never get it back!”

I don’t think anyone can argue the fact that the Supreme Court of the United States (SCOTUS) has become politicized. It’s possible the next President of the United States  will appoint 3 to 4 judges to the court. It has become a lighting rod in the election. On both the right and the left, people proclaim that unless we want to see the court destroyed (and America with it) we must vote for their candidate!

Conservatives are told that unless we want to see the court swing far left we must vote for Trump. We have to stop Clinton at all costs. For some, this is the only reason they are voting for Trump. They hope that he will appoint conservative justices, while they know Clinton will appoint progressive ones.

Let’s forget about the fact that there were far better qualified conservatives in the primary that would have absolutely have appointed conservatives. Candidates about which there wouldn’t be any doubt, as opposed to a candidate who says “Everything’s negotiable.” Forget that the 40% of GOP primary voters who selected Trump did not care about the SCOTUS. This is where we are now:

We are faced once again with the fear that SCOTUS will slide to the left if we don’t get in line and vote for the GOP candidate.

Unfortunately, it’s too late. SCOTUS is lost. Our supposedly conservative court is the same one that upheld the Affordable Care Act twice and gave us same-sex marriage.

Conservatives try to appoint justices that will interpret the Constitution as originally written. Progressives appoint justices that will interpret it in light of current views and circumstances.

So, in our “conservative” court we see progressive appointees always render opinions that line up with progressive positions, and those appointed by conservatives sometimes break ranks and join the progressives. The only way to fight this sort of thing in the current climate is to appoint conservatives that will always render opinions along the lines of conservative positions. Just as progressive justices adhere to their progressive values, we must appoint justices that will adhere to conservative principles even if they feel they violate the Constitution.

This is not what the Court is supposed to be.

This one branch of government is not supposed to have this much power. They are definitely not supposed to legislate. Aside from hearing cases from lower courts, one of their main roles is Judicial Review. Since 1803, Marbury vs Madison, SCOTUS has passed judgment on the actions of the Executive and Legislative branches of government. Here’s a quote about the case from USCourts.gov: 

“In this case, the Court had to decide whether an Act of Congress or the Constitution was the supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). A suit was brought under this Act, but the Supreme Court noted that the Constitution did not permit the Court to have original jurisdiction in this matter. Since Article VI of the Constitution establishes the Constitution as the Supreme Law of the Land, the Court held that an Act of Congress that is contrary to the Constitution could not stand. In subsequent cases, the Court also established its authority to strike down state laws found to be in violation of the Constitution.”

I believe that SCOTUS has moved too far away from what it was. Justice is no longer blind, but instead the view of the court is slanted to the right or left. We should not fear our own Supreme Court, no matter what party holds the Presidency. Pandora’s box is open. There is no way to return to the Court of before. We have to find a way to fix the Court as it is now.

Currently the only way to reverse a SCOTUS ruling is with another SCOTUS ruling or a Constitutional amendment. That worked well when the Court wasn’t legislating from the bench. Imagine Congress with such limited checks and balances that every law they ever passed was virtually immune to being overturned. That is SCOTUS today, When they make such broad rulings that, in effect, force new laws on the people, they have overstepped their role and need to be put in check.

The power to appoint Justices to the Court has become a political tool that is more effective then electing actual legislators. We have allowed this to happen, and we can stop it. The solution is not to appoint justices that reflect our views, so we can get rulings we like. That is a temporary solution to a long term problem. That solution ensures that we will always be in a fight for the Court.

The long term solution is found in Article V of the Constitution.

“Article V: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress”

This solution doesn’t just have the potential to fix SCOTUS, but to limit the power and jurisdiction of the Executive and Legislative branches as well. 34 states must petition for a Convention and submit amendments. We can fix our government. But repeating the same cycle of elections over and over is not the way. A Convention of States could be.

Regarding the Court; I believe the current system has been corrupted to the point that it must have outside reform. We cannot appoint our way out of this mess. We need measures to limit terms of Justices and ways to more easily overturn a ruling.

That is what we should be fighting for. The current Presidential election matters, because the President does (among other things) appoint Justices. But the only way to actually, truly fix SCOTUS is to limit its power. No President can do that.

Kim Davis, the Rule of Law, and Freedom

Yesterday Kim Davis, the now famous clerk from Kentucky, was thrown in jail. Her crime? She refused to allow marriage licenses to go to same sex couples with her name on them. She says that goes against her religious beliefs. After being criticized, publicly shamed, and harrassed by those who disagree with her, she was locked up.

She was arrested because she refused to issue marriage licenses to same sex couples, after a judge said she had to. She was held in contempt of court by U.S. District Judge David Bunning.

And why not? We are a nation of laws. She was elected to serve the people. There are people in her county that now have the legal right to get married, and she refused to let them. (It should be noted, that the same couples can go to many other county clerks to get their licenses.)

Some say that law she refused to follow is unjust. It is a ruling made by the Supreme Court, which cannot, in fact, create law.

This AFA article on the subject quotes the KY Constitution:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. “

When Davis took office, she promised to follow that law. And she still is.

But the Supeme Court’s ruling says laws like that are unconstitutional. Obergefell v. Hodges said that states must recognize marriages of same sex couples from other states. But then went further (and this is where they created law, rather than judged it) They appealed to the 14th amendment and said that everyone should be able to marry the same sex if they chose to. After that interpretation of the Constitution, Wikipedia explains what happened next:

“The Court examined the nature of fundamental rights guaranteed to all by the Constitution, the harm done to individuals by delaying the implementation of such rights while the democratic process plays out, and the evolving understanding of discrimination and inequality that has developed greatly since Baker.” (emphasis added)

Once they had decided that every state must recognize the marriages, the next step was to short circuit the democratic process, so their ruling decreed that it should be legal in all 50 states and American territories for same sex couples to get married.

So now we have states with legally passed constitutional amendments and the 5 judges who sit on the Supreme Court at odds with each other. And one clerk who promised to follow the law, before the law changed. (There are actually more clerks in the country like this, but Davis is the one in the news)

That’s her job. She follows the law of Kentucky in regard to her duties as County Clerk. Part of that is issuing marriage licenses. Her position is elected, and she cannot be fired. She could be impeached and removed from office. This news article explains how:

“The Supreme Court of Kentucky has a constitutional authority where they can remove a circuit clerk, but not a county clerk. And so that really is an executive branch function. The governor would have to be in charge of that. There may have to be a special session called to deal with it, or refer to the department of local government,” said Professor Connelly.

A vacancy in the office of the county clerk is filled by the county judge executive or by the mayor until a successor is elected. Even if Davis is criminally charged, she still won’t be removed from office immediately.”

And before we get on our high horse about the Rule of Law in America, let’s remember that she is not the first elected official to refuse to follow a law because it went against their conscience. That article from The Daily Signal lists 10 people in government positions who refused to follow the law about marriage. None of them ended up in jail. And all of those people took their stand for same sex marriage.

Her only crime is standing on her 1st amendment rights. She is not in jail because she won’t issue marriage certificates to same sex couples. She is in jail because she refused an order from a judge. That order was for her to act against her conscience, and against her religious beliefs. She is being held for contempt, not for breaking a law.

Should she be removed from office? Sure, she can no longer perform her duties. I’m not sure why she won’t resign. But that doesn’t make her a criminal. She should not be in jail, held in contempt, because she is exercising her rights. By holding her in contempt for refusing to follow a court order to execute a law that goes against her religious beliefs, the judge is denying her 1st amendment rights.

In her place, I would have resigned the moment I found that I could no longer do what I was being asked to do. But she didn’t. And that brings consequences.

But jail time should not be one of them. She is being held in contempt of court because she refuses to violate her religious beliefs. Remove her from office because she won’t do what the law now says she must, but do not jail a woman because she won’t betray her religion.

Impeach her, remove her from office. But jailing someone for exercising a right that is is promised to each one of us in the US Constitution threatens the freedom of every American citizen.